DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Claims 1-20 are pending, of which Claims 13-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim.
Claims 1-12 and 16-20 are under current examination.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The factual inquiries set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-6, 8-12 and 16-20 and elected species are rejected under 35 U.S.C. 103 as being unpatentable over Schelges (US20170071836A1), and as evidenced by Rikalovic (Journal of the Serbian Chemical Society; 80(3), 279-304 (2015).
Determining the scope and contents of the prior art
Schelges teaches a composition at pH7 comprising biosurfactants 1-50wt% (component A and B), wherein biosurfactant is selected from a glycolipid (one or more monosaccharides are linked by glycosidic bonds to a lipid component) (includes both rhamnolipids A and alkyl polyglycoside B (encompass elected species)), such as rhamnolipids, trehalose lipids etc., and a combination thereof with several examples; 0.5-30wt% of C10-C20 acyl lactylates (component C), such as lauroyl lactylate and 1-7.5wt% oil (component D), such as vegetable oil, plant extract (encompass elected species), (entire application, especially abstract, paragraphs 0011-0018, 0038-0041, 0053-0058 and claims). As evidenced by the definition provided by Schelges and further evidenced by Rikalovic (entire article), glycolipid biosurfactant encompass rhamnolipids A and alkyl polyglycoside B.
Ascertaining the differences between the prior art and the claims at issue
Schelges teaches a composition at pH7 comprising biosurfactants 1-50wt% (component A and B), wherein biosurfactant is selected from a glycolipid (one or more monosaccharides are linked by glycosidic bonds to a lipid component) (includes both rhamnolipids A and alkyl polyglycoside B (encompass elected species)) or a combination thereof; 0.5-30wt% of C10-C20 acyl lactylates (component C) and 1-7.5wt% oil (component D), but fails to teach example wherein combination of biosurfactants A and B are used in the composition.
Resolving the level of ordinary skill in the pertinent art
With regards to the above difference- Schelges teaches a composition at pH7 comprising biosurfactants 1-50wt% (encompass range of the instant claims) (component A and B), wherein biosurfactant is selected from a glycolipid (one or more monosaccharides are linked by glycosidic bonds to a lipid component) (includes both rhamnolipids A and alkyl polyglycoside B (encompass elected species)) or a combination thereof; 0.5-30wt% of C10-C20 acyl lactylates (component C) (encompass range of the instant claims) and 1-7.5wt% oil (encompass range of the instant claims) (component D). Thus, with the guidance provided by the cited prior art, it would have been prima facie obvious to a person of ordinary skill in the art with a reasonable expectation of success that preferred biosurfactant rhamnolipid of the cited prior art may be used alone or in combination with other glycolipids surfactant as taught by the cited prior art. Further, component A and B are biosurfactants as taught by the cited prior art, it would have been prima facie obvious to a person of ordinary skill in the art that the biosurfactant may be combined to form a composition.
It is obvious to combine two compositions taught by the prior art to be useful for the same purpose to form a third composition that is to be used for the very same purpose.
In re Kerkehoven, 626 F.2d 846, 205 U.S.P.Q. 1069 (CCPA 1980).
Based on the above established facts, it appears that the teachings of above cited prior art read applicants’ composition.
Therefore, all the claimed elements were known in the prior art and one skilled person in the art could have combined the elements as claimed by known methods with no change in their respective functions, and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention.
Considering objective evidence present in the application indicating obviousness or nonobviousness
To establish a prima facie case of obviousness, three basic criteria must be met: (1) the prior art reference must teach or suggest all the claim limitations; (2) there must be some suggestion or motivation, either in the references themselves or in the knowledge generally available to one of ordinary skill in the art, to modify the reference or to combine reference teachings; and (3) there must be a reasonable expectation of success; and (MPEP § 2143).
In this case, Schelges teaches a composition at pH7 comprising biosurfactants 1-50wt% (encompass range of the instant claims) (component A and B), wherein biosurfactant is selected from a glycolipid (one or more monosaccharides are linked by glycosidic bonds to a lipid component) (includes both rhamnolipids A and alkyl polyglycoside B (encompass elected species)) or a combination thereof; 0.5-30wt% of C10-C20 acyl lactylates (component C) (encompass range of the instant claims) and 1-7.5wt% oil (encompass range of the instant claims) (component D).
In KSR International Vo. V. Teleflex Inc., 82 USPQ2d (U.S. 2007), the Supreme Court particularly emphasized “the need for caution in granting a patent based on a combination of elements found in the prior art,” (Id. At 1395) and discussed circumstances in which a patent might be determined to be obvious. Importantly, the Supreme Court reaffirmed principles based on its precedent that “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” (Id. At 1395). See MPEP 2143 - Examples of Basic Requirements of a Prima Facie Case of Obviousness [R-9].
In this case at least prong (E) “Obvious to try” – choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success would apply.
The rationale to support a conclusion that the claim would have been obvious is that “a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely that product [was] not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under § 103.”KSR, 550 U.S. at ___, 82 USPQ2d at 1397. If any of these findings cannot be made, then this rationale cannot be used to support a conclusion that the claim would have been obvious to one of ordinary skill in the art. Further, there is a reasonable expectation of success that rhamnolipid, a biosurfactant may be combined with another biosurfactant, alkyl polyglycoside and can be made by teachings of the above cited prior art.
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention by taking the advantage of the teaching of the above cited references and to make the instantly claimed composition with a reasonable expectation of success.
Allowable subject Matter
Claim 7, present allowable subject matter over the prior art on record.
Objection
Claim 7, is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Response to Arguments
Applicant’s remarks and amendment, filed on 10/21/2025, have been fully considered but not found persuasive.
Applicant argued that Schelges definition of Biosurfactant means substances formed by microorganisms and Wikipedia usually refers Biosurfactant as surfactants of microbial origin and therefore does not include alkyl polyglycosides. Applicant argued that alkyl polyglycosides are not formed by microorganisms and refers to Wikipedia and the instant specification that these are reaction products of sugars and/or polymers thereof, such as starch with fatty alcohol. Applicant argued that Rikalovic does not overrule the clear definition of biosurfactants in the context of instant specification and Schelges.
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This is not found persuasive and the instant claims stands rejected over the cited prior ar. This is because Schelges definition of biosurfactants as reproduced below:
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. Thus, according to Schelges, Biosurfactants means substances formed by microorganisms and raw materials used for such production are carbohydrates (i.e., polymers including starch)-----fatty alcohols. According to applicant’s remarks on the instant specification,
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alkyl polyglycosides are in fact encompassed by the biosurfactants of Schelges as the raw materials used for such production of alkyl polyglycosides are carbohydrates (i.e., polymers including starch)-----fatty alcohols and are same as referred by the instant specification. The instant specification broadly defines alkyl polyglycosides and includes any produced by any method. Applicant’s reference to Wikipedia is again not found persuasive as Wikipedia is not considered as reliable art. Rikalovic also clearly provides evidence that biosurfactants does include alkyl polyglycosides. In any case, Schelges clear definition of biosurfactants as well as alkyl polyglycosides definition in the context of instant specification provides that alkyl polyglycosides are encompassed by biosurfactants of Schelges.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Conclusion
No Claim is allowed.
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/PANCHAM BAKSHI/Primary Examiner, Art Unit 1623